THE COURTS. COURT OF APPEAL.

New Zealand Mail, Issue 1106, 12 May 1893, Page 25

THE COURTS.

COURT OF APPEAL.

Textrsway, May 4. (Before the full Bench.) IN RE (J. F. ROWLETT, SOLICITOR, OF DUNEDIN.

Motion to make absolute a rule nisi striking Mr Rowlett off the rolls for having issued a summons without authority. The Supreme Court at Dunedin suspended Mr Rowlett in November last, pending the decision of the Court of Appeal. Sir Robert Stout now appeared for the Dunedin Law Society in support of the motion, and Mr Edwards appeared on behalf of Mr Rowlett to oppoae it. After hearing argument, the Court dis> charged the rule, their Honors holding that only negligence on Rowlett's part had been made out, and that striking off the rolls was not the proper remedy for that. Besides, Rowlett had been sufficiently punished jn being suspended for six months. He was ordered to pay £7 7s costs to the Dunedin Law Society. ■■'-'«.'.'. T, CLARIDGE V. UNION ST3AM*HIP COMPANY.

In the Court of Appeal last year Claridge succeeded in his actioo for damages against the company, and the company obtained leave.to appeal to the Privy Coandl. Sub' sequently, on the motion of the company, an order was obtained staying the execution of the judgment pending the appeal to the Privy Council, Claridge by his counsel consenting to waive security for the performance of the judgment upon the company undertaking to proceed with diligence with their appeal. Mr Edwards, on behalf of Claridge, now moved that the above order should be discharged and set aside upon the ground that the company had taken no steps whatever to prosecute their appeal, and had therefore committed a breach of faith.

Mr Chapman appeared for the oompany to oppose the order. After hearing argument, their Honors delivered judgment. The Chief Justice said that in his opinion the Court had no jurisdiction to discbarge the order, as that would amount to dismissing the appeal. Whether or not the fact of security having been waived would dispense with the necessity for applying to the Privy Counoil, was a question that ho was not prepared to determine,. In his opinion the Court must treat this appeal to the Privy Council as if security had been given. At any rate, according to the Victorian authorities, and he thought rightly, this Court had no jurisdiction over the matter. If there had beeu delay, the Privy Court was the proper Court to apply to. With regard to the merits, defendant in the case professed to Bay that there had been negotiations, while plaintiff said there bad been no negotiations at all, but simply an offer which was made and rejeoted within 24 hours. It was difficult to form an opinion upon the affidavits and so on, He himßelf thought that, even supposing the Court had jurisdiction, it would be necessary for the plaintiff in the aotion to make out that there bad been real, unjustifiable, intentional delay. Mr Justice Denniston said he was of the same opinion. One would like to look more carefully into oases and praotice, without deciding definitely as to the jurisdiction of the Court, but as he conourred in the opinion of the Chief Justioo on the merits it was unnecessary to go into that now.

Mr Justioe Conolly also conourred in the omoion that the motion must be dismissed. Ht was not entirely satisfied that the Court had no jurisdiction. It was an intricate question, and ha would have liked, if necessary, to look into the matter more oarefully. At the same time, so tar as he could judge of the oases cited, he was of opinion that the Court had no jurisdiction. The matter had passed out of their hands, and was into those of the Privy Counoil. It was an .application to set asida an order for stay of proceedings, and to dispense with the necessity of the appellant giving aoourity. If the order were set aside not only would the plaintiff be entitled to receive the amount of his judgm-ut without the conditions Mr Edvtarua said Be was willing to take in recovery of restitution, but the Appellant would be prevented from going oa with the appeal, which would there/ore be virtually dismissed. If it were oeoessary to go into the merits he might possibly hold a different view from that expresasd by the other Judges. It appeared to him that the Union Company had no intention of gointf on, but hadnimply been delaying the matter in the hope of making better terms. iur Justice Ward concurred with the rest of the Court that the motion must be dismissed. He had very grave doubts whether the Court had jurisdiction to grant the order asked for, and on this ground alone he would bold that the motion must be dismissed. As to tho merit?, ha held a different opinion from that just expressed by Mr Justioe Conolly, It appeared to him that the plaintiff in the case had suffersd no great hardship. Motion dismissed without costs. ATTORNEY GENERAL (ON THE RELATJON OJf HAWKINS) V. NEW ZEALAND RAILWAY COMMISSIONERS.

Motion to dissolve an injunction granted against the Railway Commissioners prohibiting them from interfering with the crossings of Pitt and Cook streets, PalmerBton North. Messrs Haselden and Hall for the plain, tiffs, and in opposition to the motion. Mr Gully for the Commissioners and in support of the motion. Mr Golly had not cloaed his argumont when the Court adjournod till 10 30 next morning. Friday, May 6. Mr Gully continued his argument and finished at noon. Mr Haselden then opetted the case for the plaintiffs, and had not finished when the Court adjourned for luncheon at 1 o'olock. On thd Covnct resuming at 2 o'clock their

Honors Intimated that they did not wish to hear further argument. They had decided to dismiss the motion. Costs were allowed against the Commissioner*. COLONIAL BA.NK V. MACDON.VLD. _ This was an appeal against the decision of His Honor the Chief Justice in refusing an application to have the above-named case tried bsfore a jury. Mr Jellicoe appeared for the appellant, and Mr W. B. Edwards (instructed by Mr Chapman) for the Colonial Bank, the respondents. Mr Jellicoe olaimed a trial of the action before a jury first as a matter of right, and secondly as a matter of discretion. He contended that the discretion must be exercised reasonably, and it ought clearly to have been exercised in the defendant's favour; that questions of fraud or do fraud were issues of pure fact, and not questions of law, inasmuch as they involved a great confliot of evidence of a personal character: and he cited cases to show that the Court will not refuse a jury for the trial of issues of fraud or questions of fact as to which the evidence is contradictory. He further argued that the word ' conveniently ' in rule 264 should be considered to include the words ' proper,' * suitable ' or 'justly,' and that the Chief Justice had exercised his discretion for a reason not well founded in law. He relied upon a decision in Fernie v. Young (I. House of Lords Law Reports), in whioh Lord Westbury held that 'it is a settled principle of law that questions of fact shall ba tried by a jury.' Mr Justice Denniston, at the conclusion of Mr Jelhcoe's argument, said the Court did hot think it necessary to oall upon Mr Edwards to reply, For his own part he had not at any stage of the proceedings had any doubt what the judgment of the Court ought to be. The appeal was from a decision of the Chief Justice, first in Cham* bera and then in Court, refusing the application of the defendant to have the case heard by a jury, The appeal was based upon two grounds Ist, that under the rules the defendant had a right to a trial by jury, and 2nd, that even if she had not this right there were rules applio able to this oase under whioh the learned Judge should have made the order. As to the first point, there were preliminary objections which might be raised. Having indicated these, His Honor said that at any rate it seemed obvious on tha statement of oiaim and the pleadings that this w»s not a oase that came within the scope of rule 250. This disposed of the first point. As to the second point, it could not be disputed that it lay upon the party asking for a jury to show that it was a case whioh could be more conveniently tried by a jury, and it was equally dear that it was within the discretion of a judge in the Supreme Court to decide whether it was a case which could be more conveniently bo tried. That being so, the appeal was an appeal from the exercise by the Chief Judge of a discretion given to him by the rules. Admittedly, if the exercise of that discretion was upon a wrong basis or principle, the appeal would lie; but it lay, he thought, upon the appellant to show that the discretion had been exercised upon a wrong basis. In order to establish that they would require to accept certain general principles which had been suggested to them by the appellant; those seemed practically to be that in any case in which there are simple questions of fact as to whioh there was a conflict of evidenoe, and if the decision of those questions of fact would decide the matter, that there mast be a trial by a jury, and that therefore in any case in whioh personal character was involved there ought to be necessarily a jury, He knew of no suoh rule, and none of the cases cited seemed to him to go anything liko the length of establishing suoh a rule. Every case, it seemed to him, must he decided ou its special circumstances. What the Chief Justice must be taken to have done in this case was to have looked at the pleadings and como to the conclusion, as they were told he had, that it would require a great deal of elaboration and discussion, that in fact there would be a.very large number ol issues to be submitted to a jury, n mistake or blunder as to whioh would involve very serious consequences. There seemed to be no suggestion that there had been any exercise by the Chief Justice of his discretion on an improper principle. The present application seemed to him to be an attempt to cripple the wholesome discretion whioh was left to the Judge in the first instance in determiniog what was after all a question of procedure. He thought that the Chief Justioe had exorcised his discretion very properly. The appeal would ba dismissed. Mr Justice Conolly and Mr Justice Ward expressed themselves as of the same opinion. Appeal dismissed with coats on the middle scale. The Court thou adjourned until 10.30 on Monday morning. Monday, May 8. (Before the full Bench.) PIRIPI TB MAARI AND OTHERS V. A. MATTHEWS AND It. B IUTCN. This case arises out of the fishing rights claimed by the Natives over the Wairarapa Lake. By consent of both parties, and on the order of Mr Justice Richmond, it was removed from the Supreme Court for the deoision of the Court of Appeal. Mr Menteath appeared for the plaintiff Natives, all of whom reside in the vicinity of Greytown. MrH.D. Bell appeared for the defendants, Matthews and Barton, the former being ohairman of the Wairarapa River Board, and the latter the keeper of an accommodation house at Okorewa, where the overflow from the lower lake to the eea takes piace. Mr Gully was present to watch the case on behalf of the Crown. According to the 'special case stated,' the plaintiffs and 136 other Natives hold, under certificate of title, 24,590 aores of land, known as Wairarapa Moaoa, which is in large part covered by water, and is known as the Upper and Lower Wairarapa Lakes. The lower of these lakes is separated from the sea by a strip of sand and shingle, called •the spit'and during certain portions of eaoh year the overflow of the lower lake empties itself into the sea through a channel of varying width, which each overflow;

I scours for itself across the spit at a place i called Ikorewa. This overflow usually ceases in dry weather when the outflow of the water is of less than usual strength and volume, and when southerly gales dashing tiie sea against the overflow channel silt up the same with sand and shingle, whereupon all trace of any channel or waterway disappears, and the spit assumes the appearance of a continuous sand and shingle bar. The periods of overflow sometimes occar during the winter months, but always at some period in the summer or autumn. As the several large rivers flow into the lakes, the country surrounding the lakes becomes slowly inundated during the periods when the outlet to the sea is closed, thus causing detriment to the settlers until the overflow again recommences either through natural causes or artificial agency. The area subjeot to this periodical overflow in the possession of European settlers is stated by the plaintiffs to be about 15,968 acres, and by the defendants to be about 28,000 aores. During certain seasons of the year the Natives derive a large quantity of food from the eels whioh exist in numbers in the lakes, and during the autumn months, when the lower lake is closod, the eels congregate in numbers near the spit, and they are then caught in large quantities by the Natives ; but directly the lake is opened, whether naturally or by the removal of the obstruction, the bulk cf the eels which congregate near the spit are washed out to sea by the force of the escaping waters. The greater portion of the lands subject to flood have been purchased by Europeanßfromthe Crown, to whom it was sold by the Native owners. The plaintiffs disputed the facts of the sale to the Crown of a large portion of the said lands, and a Royal Commission was appointed in 1890 to enquire into the matter. Moreover, the plaintiffs contend that their alleged right and that of the other Native owners of the Wairarapa Lakes to maintain the natural dosed periods of the lower lake for the purpose of their fisheries, has been from the earliest times, and for more than twenty years acquiesced in by the pur. chasers of the lands liable to submergenoe, and acknowledged by the Crown. In 1888 the Wairarapa South County Counoil declared the outlet of the Lower Wairarapa Lake to be a public drain, and in 1889 delegated the construction aud maintenance of this drain to the Biver Board. About the same time defendant Barton contracted with the board to remove the obstruction to the outlet. In May the Natives erected a wire fence across the channel and began fishing for eels. Barton, directed by Matthews, and assisted by various Bottlers and workmen, proceeded, notwithstanding, to open the channel. The Natives at first resisted, bat gave way upon being assured that no obstaole would be raised to the deoision in Court of the questions of right involved. The present pro* ceedings are the consequence. The questions submitted to the Court for its determination are :—l. Is the outlet of the lakes through the spit a natural watercourse within the meaning of the Public Works Aots and the River Board Acts 1 2. Is snch outlet a publio drain within the meaning of the same Acts ?3, Is such outlet such as is contemplated by section 18 of th« Publio Works Aot, 1889 ? 4. Is Buch outlet a tidal water within the meaning of the Kiver Boards Aots ? 5. Had the Wairarapa South County Council power to open and keep clear from obstruction the said outlet ? 6. If so, was the delegation of that power to the South Wairarapa River Board valid ? 7. If not, was the aotion of the defendants validated by the Bubsequeit adoption and ratification of suoh aotion by the County Counoil? 8. Had the South Wairarapa River Board power to open and keep dear from obstruction the said outlet ? 9. Is the defendant, Alfred Matthews, liable in damages, either as ohairman of the South Wairarapa River Board or as a private person, in an aotion of trespass by the present plaintiffs for the acts done on the 13th day of May, 1892? 10 Is the defendant, Robert Barton, so liable? The plaintiff* pray :- 1. Judgment for tho sum of £4)9 damages and costs. 2. A. writ of injunction restraining the defendants and all other persona from trespassing upon the lands described, and from interfering with and destroying tho fishery rights of the plaintiffs and others, 3. Suoh farther or other relief as to this Court may seam fit. Mr Menteath argued the case of the Natives at great length. The Court adjourned shortly before 5 o'clock,

Argument in the Wairarapa Lake eel-fishing case, fc'iripi te Maari and others v. Matthews and Barton was concluded on Tuesday. On the Court resuming Mr H. D. Bell was heard for the defendants, and Mr Mer,teath for the plaintiffs then replied. Their Honors reserved judgment. As this case exhausted the list the Court adjourned till this morning.